English learning case hits high court

by Pat Kossan - Jan. 10, 2009 12:00 AMThe Arizona Republic

The U.S. Supreme Court decided Friday to step into Arizona's divisive legal battle about how much money public schools should spend teaching English to children who enter school unable to speak the language.

A ruling from the Supreme Court could end the federal court case, filed in 1992, or send it back to a lower court with new directions. It also could weaken a 30-year-old civil-rights law guaranteeing every child a good education.

"It is not a good sign for us," said attorney Tim Hogan of the Arizona Center for Law in the Public Interest, which for years has pursued additional funding and better language programs for children from homes in which English is not the primary language.

"Ordinarily, they don't take cases unless they mean to modify or reverse a Circuit Court decision," Hogan said.

In February, Hogan succeeded in persuading the 9th U.S. Circuit Court of Appeals to agree that the state had failed to comply with a 2000 federal district court order that Arizona adequately fund a program to help children learn English and excel academically. The ruling kept alive the district court judge's threat of fines against the state up to $2 million a day.

To ward off fines, lawmakers created a program requiring schools to provide four hours of English phonics, grammar and reading for the 138,000 Arizona students who need help, and they funded it with an additional $40 million.

Hogan called that inadequate and continued to pursue the case, known as Flores vs. Arizona.

Superintendent of Public Schools Tom Horne and state legislative leaders hired attorneys and took the issue to the U.S. Supreme Court in September.

They argued that Arizona had made necessary changes to comply with the court order and that the federal No Child Left Behind Act of 2002 guaranteed that all children, including language learners, are making progress.

They also argued that further demands by a federal court judge constituted meddling in state business.

All sides were surprised Friday at the court's decision to review the case.

"By accepting this case, the U.S. Supreme Court has shown respect for the right of the people to rule themselves," Horne said. "The U.S. Supreme Court agrees to hear arguments in less than 1 percent of cases."

Attorneys for Horne and the lawmakers argue that Arizona complied with court orders as it continually implemented new immersion English-language programs and increased funding going to help language learners.

Schools say the state provides only a fraction of the real cost of helping language learners, forcing schools to use federal and local tax money to help the students. Federal judges point out that the state has not done a comprehensive cost study to show the current funding for programs for English learners is adequate.

"School boards right now are required to educate English-language learners and make sure they are achieving academically, and that means learning English as soon as possible," said attorney Chris Thomas of the Arizona School Boards Associations. "It takes people and it takes resources to do that."

Horne and the lawmakers' petition to the Supreme Court also argued that the state has followed the directives of the federal No Child Left Behind Act, which requires all schools to demonstrate through testing that all students are making progress. The law also provided more federal money to help schools meet some of the law's objectives.

If the Supreme Court agrees with that argument, it would end the case and weaken the 30-year-old Equal Education Opportunity Act. The federal civil-rights law requires states to fund schools adequately so that every child gets a good education. It is the backbone of the case against Arizona.

The state Attorney General's Office and the State Board of Education argued against asking the U.S. Supreme Court to step in. They said the state was already close to complying with the federal court order.

The U.S. Supreme Court justices gave no hint as to why the court decided to take on the case or which justices voted for a review. It takes at least four of the nine justices to agree to review a case. They will hear arguments from both sides in April. A decision could come as early as June.